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R v Kirkland [ 2021] HCATrans 205  (3 December 2021)

Last Updated: 6 December 2021

 [2021] HCATrans 205 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A19 of 2021

B e t w e e n -

THE QUEEN

Applicant

and

DAMIAN PAUL KIRKLAND

Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY AND MELBOURNE

ON FRIDAY, 3 DECEMBER 2021, AT 9.30 AM

Copyright in the High Court of Australia
GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR M.G. HINTON, QC appears with MS F.J. McDONALD and MR B. LODGE for the applicant. (instructed by the Director of Public Prosecutions (SA))

MS M.E. SHAW, QC appears with MR B.J. DOYLE, QC for the respondent. (instructed by Johnston Withers Lawyers)

GAGELER J: Yes, Mr Hinton.

MR HINTON: If the Court pleases. This judgment constrains a trier of fact in its fact‑finding role to drawing only those inferences from facts found in relation to which the parties have had explicit notice. Now, no authority is cited for that proposition in the judgment, which in itself is indicative of its novelty. In the context of the criminal trial, the proposition marks a significant change in the function of a trier of fact. Until now, juries and, in this case, trials by judge alone, have always been told that the facts are for them, that addresses from counsel are intended to assist but are not binding, that any view of the facts which the jury might glean that the trial judge has or holds may be rejected, because the facts and any inferences to be drawn from the facts, are for them, for them to determine in applying their collective life experience.

Until now, evidence adduced without objection may be used by the trier of fact for any and all purposes that the evidence is capable of supporting, such use to be determined by the trier of fact unless they are subject to a direction as a matter of law that the piece of evidence can only be used in a certain way. Now, if judges and juries are to be constrained in their fact-finding task, as this judgment holds, then such constraint, being so profound in its effect, this is a fit question and a fit case for this Court to determine.

GORDON J: Mr Hinton, may I ask about that – sorry, Justice Gageler.

GAGELER J: No, you go ‑ ‑ ‑

GORDON J: No, you go ahead, Justice Gageler.

GAGELER J: Mr Hinton, when I read your special leave question, I wrote against the formulation of the question, “It all depends”. You must accept that there can be circumstances in which a use of evidence by a trier of fact catches parties by surprise in a way that can amount to a denial of procedural fairness.

MR HINTON: Well, you can contemplate that occurring, but it would be ordinarily where the use of something that is beyond the ordinary expectation of counsel to comprehend. It would be a rare and exceptional case. When you consider this question, the special leave question that we put to your Honours, in the criminal jurisdiction in particular, one has to view it in the context of the procedure that takes place to ensure that there is disclosure along the way so that everybody knows where they stand come trial. So you have an information, the charge is there, there are the particulars, there is the opportunity to seek further particulars. The information in this State has on its back the list of witnesses that the prosecution seeks to call.

In the committal proceedings, the statements are filed and served indicating what the evidence is that is intended to be called and what each witness will say. There is then the ongoing obligation to disclose. There is the opportunity in committal proceedings to question a witness to ensure that you understand the prosecution case, and when it comes to trial, there is the opportunity to apply to exclude or, indeed, have a Basha inquiry – here we call them Rule 49 inquiries – where you can, again, test or seek further disclosure by examining witnesses on the voir dire.

So, when you look at it in that context, what your Honour Justice Gageler postulates would have to be the most rare and exceptional case. The whole system is predicate on the basis that, in an accusatorial, adversarial process, those structures put you in a position where you know what you have to face.

GORDON J: Mr Hinton, if you accept that the significance has to be looked at in the context of the way the prosecution put its case – the way the defence responded to it. And here, you have – as I understand the way in which the Court of Appeal addressed it – you have got the evidence, for a proclivity purpose, which was found to be prejudicial, really, to Mr Kirkland – in circumstances where that purpose was not contemplated by the parties joining issue at trial. It seems the trial judge misunderstood the prosecution case about it and the parties were not given an opportunity to address the reasoning adopted or make submissions about this proclivity reasoning.

The second thing is, we know from Glennon’s Case that the Crown appeal has to be exceptional in a context of leave. What is exceptional about this given, as Justice Gageler put to you, it depends?

MR HINTON: Can I deal with the first question, and that is – well, I will deal with it on this basis. There was no change in the prosecution case here. The prosecution case, at all times, was that the complainant was credible and reliable such that you could be satisfied beyond reasonable doubt that when she told you she was subject to three episodes of sexual offending, she was. What we are dealing with here is the drawing of inferences from evidence. Moving to the second question, against the background of the answer to the first, why is this exceptional – because we are constraining triers of fact, in the drawing of inferences from evidence.

This is not a case about a change in the prosecution case. This is not a case about a judge misunderstanding the prosecution case, or the defence misunderstanding the prosecution case. This is a case where evidence has gone in, and not objected to, where the normal rule applies that it can be used to support all manner of reasoning which it reasonably can support, and it has been used. There is no denial of procedural fairness, with respect, because you are expected – in the circumstances of a case such as this, in the framework, the criminal, procedural framework – bearing in mind the infrastructure that I put to your Honours, to deal with those inferences that might arise, that you, in running your case, consider should be dealt with. Now, a trier of fact – sorry, your Honour.

GAGELER J: I am sorry, Mr Hinton. I wonder if that submission really comes to grips with what Justice Lovell was saying at paragraph 171, and what he seems to be saying is that this trial may have been conducted differently if this use of the evidence was within the contemplation of the parties.

MR HINTON: Can I answer that by going back a step, and I go back a step because there was no evidence before the court that this was not the product of a legitimate forensic decision, because defence counsel, in attempting to undermine the evidence of a complainant, utilised the mother’s evidence as to the nature of the restraints. That was an important limb in the argument that her evidence was implausible.

So it is possible and it is surmised, with the greatest of respect to Justice Lovell, on his part, that the case would have been run differently. This is not a case where anyone said that counsel acted incompetently in the legal sense. It was open to counsel to decide that this difference between mother and daughter could be an important way in which we could undermine the daughter’s case.

So when we come to paragraph 171, that conclusion, which arises against the errors set out at paragraphs 166 to 169, is based upon speculation, with the greatest of respect. It is also those conclusory remarks there, erected on the foundation that there was a denial of procedural fairness, and for the reasons we have put in writing and I have already put to your Honours, in our submission there was no such denial of procedural fairness. This trial took place according to the normal procedures designed to ensure that the parties are aware of the cases they must answer.

Now, defence counsel did not say anything about the use that the judge made of the proclivity evidence. And one very good reason for not doing that was because the prosecutor did not. Every day in criminal courts up and down the country, if someone misses a point, that potentially could be used adversely to you, it is open for you not to say anything about it for fear of giving it oxygen where, at the moment, the trier of fact is left in a position where they might be unaware of its use.

So, again, we could have – but it was never explored – a legitimate forensic purpose. Had the ground of appeal been incompetence of counsel, these things could have been explored. But with the greatest respect to Justice Lovell, the errors at 166 to 169 are largely surmised and, in no small part, built upon his assessment of the use being proclivity – with which we disagree – and in no small part being built upon the indication he gives that admissibility for that purpose was a serious question to find.

I come back to the significance of this ruling. With respect, the ratio of the judgment all turns on the use made by the trial judge not being flagged – if I could put it that way – nothing more. The significance of the miscarriage is erected on that foundation. Our primary contention is there was no obligation to flag such use. There was no denial of procedural fairness. And if there was, then this judgment will go forward as constraining triers of fact to determine – from an assessment of the evidence and facts found – whether only those inferences which the trier of fact has been invited by the parties to draw, should be drawn. That limitation is contrary to directions given in trials every day.

The facts, ladies and gentlemen, are for you and you alone. The inferences you draw from the facts are for you and you alone. The addresses assist but they are not binding. Anything the trial judge says is not binding. The facts are for you. In those circumstances, in our submission, this is a case fit for a grant of special leave. If the Court pleases.

GAGELER J: Thank you, Mr Hinton. The Court will take a short adjournment to consider the course we will take.

AT 9:44 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.47 AM:

GAGELER J: Mr Doyle, we do not need to hear from you, thank you.

MR DOYLE: Thank you.

GAGELER J: We are not persuaded that the judgment of the majority of the court below turns on a question of general principle suitable for reconsideration by this Court on a prosecution appeal. Special leave to appeal is refused.

The Court will now adjourn.

AT 9.48 AM THE MATTER WAS CONCLUDED